Court of Appeal Tosses Former Judicial Candidate Vicki Roberts’
Suit Against County Bar as SLAPP

By KENNETH OFGANG, Staff
Writer/Appellate Courts

A suit challenging the
way the Los Angeles County Bar Association evaluates judicial candidates was
thrown out yesterday by this district’s Court of Appeal.

Justice Fred Woods,
writing for Div. Seven, said the suit by attorney Vicki M. Roberts, who lost a
bid for election to the Los Angeles Superior Court in November 2000, infringed
on LACBA’s free speech rights and constitutes a strategic lawsuit against
public participation.

Roberts, who ran in the
last contest held within the old Los Angeles Judicial District, lost by 50,000
votes to then-prosecutor David Mintz after outpolling four other contenders in
the primary despite LACBA’s “not qualified” rating. Mintz was rated “well
qualified.”

Under the longstanding
LACBA procedures, candidates are initially interviewed by a subcommittee of the
association’s Judicial Evaluations Committee, which then recommends a rating to
the full committee.

The full committee may
rate a candidate well qualified, qualified, or not qualified. Ratings less than
well qualified are considered tentative, and a candidate may appeal and appear
before the full committee in an effort to upgrade the rating. Roberts availed
herself of that right, to no avail.

Roberts accused LACBA of
breach of contract and fraud and sought declaratory and injunctive relief as
well as damages. She said the committee promised her—as it did each of the
candidates—a fair process that was not forthcoming because the committee failed
to abide by its own rules.

Specifically, Roberts
said she was subject to an initial interview that “had all the attributes of an
ambush,” and that the committee did not comply with a rule that requires
candidates be given 48 hours’ notice of any negative material it intends to ask
about. She also complained that a committee member whom the chairman had
disqualified from her evaluation due to a conflict of interest was present when
she was interviewed by the full committee, although not during the
deliberations afterward.

Los Angeles Superior
Court Judge Emilie Elias dismissed the injunction cause of action but allowed
the damage claims to go forward. The County Bar, however, exercised its
statutory right to an interlocutory appeal of the denial of its anti-SLAPP motion.

The motion should have
been granted, Woods wrote for the Court of Appeal, because LACBA satisfied its
burden of showing that its free speech rights were being chilled and Roberts
did not make the required countervailing showing that she was likely to prevail
on the merits.

The justice rejected
Roberts’ claim that the suit was not a SLAPP because she was only attacking the
process and not the end product. The procedures, Woods said, were “inextricably
intertwined with and part and parcel of the evaluations.”

Roberts cannot prevail
on her breach of contract claim, the justice went on to say, because there is
no evidence that the alleged breach harmed her reputation, especially since her
original interview was rescheduled to give her the required notice of negative
comments. And any defect in the notice could have been cured at the appeal
hearing, Woods said.

Nor is there any
evidence that “the mere presence of a disqualified committee member at her
appeal hearing affected the vote,” Woods said, noting that an overwhelming
majority of the members voted Roberts “not qualified.”

Roberts told the MetNews
that while the court treated her “with great respect,” it had reached the wrong
decision. She said she will seek review in the California Supreme Court because
the committee should not be allowed to use the evaluations process “to control
the outcome of judicial elections.”

LACBA’s appellate
lawyer, Gary Kessler of Wilion, Kirkwood & Kessler, declined to comment
other than to say that “the opinion speaks for itself.”